Citation Nr: 0811591 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 01-06 991A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Michael R. Viterna, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The veteran served on active duty from November 1968 to June 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2000 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which found that new and material evidence had not been received to reopen the previously denied claim. Although the RO subsequently determined in a July 2001 Statement of the Case (SOC) that new and material evidence had been received, the Board was required to find new and material evidence on its own in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. The veteran provided testimony at a hearing before the undersigned Veterans Law Judge in April 2002. A transcript of this hearing has been associated with the veteran's VA claims folder. In September 2003, the Board remanded the veteran's appeal for further development. Thereafter, by a December 2006 decision, the Board concurred with the determination that new and material evidence adequate to reopen the previously denied claim had been received, but denied the service connection claim on the merits. The veteran appealed the Board's December 2006 decision to the United States Court of Appeals for Veterans Claims (Court). By a December 2007 Order, the Court, pursuant to a joint motion, vacated the Board's decision to the extent it denied service connection for PTSD, and remanded the case for compliance with the instructions of the joint motion. For the reasons stated below, the Board finds that a remand is required in order to comply with the instructions of the joint motion. Accordingly, the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required on his part. REMAND The Board notes at the outset that VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West , 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In addition to the general rules of service connection noted above, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Further, 38 C.F.R. § 4.125(a) requires that diagnoses of mental disorders conform to the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) and that if a diagnosis is not supported by the findings on the examination report, the rating agency shall return the report to the examiner to substantiate the diagnosis. The DSM-IV provides two requirements as to the sufficiency of a stressor: (1) A person must have been "exposed to a traumatic event" in which "the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others" and (2) "the person's response [must have] involved intense fear, helplessness, or horror". DSM-IV at 427-28. These criteria are no longer based solely on usual experience and response but are individualized (geared to the specific individual's actual experience and response). Hence, under the DSM-IV, the mental illness of PTSD would be treated the same as a physical illness for purposes of VA disability compensation in terms of a predisposition toward development of that condition. Cohen v. Brown, 10 Vet. App. 128, 141 (1997). In Zarycki v. Brown, 6 Vet. App. 91 (1993), the Court held that the presence of a recognizable stressor is the essential prerequisite to support the diagnosis of PTSD. The veteran essentially contends that he has PTSD due to in- service stressors that occurred while he was stationed on active duty to Korea. In its September 2003 remand, the Board directed that the U.S. Armed Services Center for Research of Unit Records (USASCRUR) be asked to provide any available information which might corroborate any of the veteran's alleged in-service stressors and determine whether the veteran had engaged in combat. In its August 2005 response, USASCRUR verified that during January 1969, the veteran's unit prepared to return to Korea's Demilitarized Zone (DMZ) to continue with its mission of surveillance, anti-infiltration and defense; that the battalion returned south of the Imjim River in June 1969; that it rotated back along the DMZ in September 1969; and that the battalion returned south to begin an intensive training program aimed at raising the level of combat effectiveness of the individual soldier and the unit. It also noted that the U.S. Army casualty reports did not list casualties during the veteran's tour of individuals with the last names provided by the appellant. However, it noted that it did not maintain 1969 Morning Reports and recommended a Morning Report search for casualties. A search for the Morning Reports for the time period in question was initiated in August 2005, but was inconclusive due to missing information. A second search was submitted in December 2005 and those reports have been included in the record. However, they do not provide verification for the veteran's claimed stressors. Based on the foregoing, as well as a determination that the veteran did not engage in combat while on active duty, the Board denied the claim of service connection for PTSD in December 2006 due, in essence, to the lack of verified stressors. However, the joint motion which was the basis for the Court's December 2007 Order in this case contended, in part, that VA failed to fulfill its duty to assist in obtaining information from the National Personnel Records Center (NPRC). Specifically, the joint motion noted the Board's finding that the U.S. Army casualty reports did not list casualties during the veteran's tour of individuals with last names provided by the veteran. However, the joint motion noted that the veteran identified the name "Brown" in addition to other names, but VA had not searched casualty reports for this name, though searches were conducted for other names identified by the veteran. It was contended that a search was necessary to determine if this individual's name appeared on casualty reports. The Board further notes that a lay statement was submitted in support of the veteran's claim in March 2008 by a fellow service-man who indicated that the casualty's name may have been "Beenson" or something starting with a "B." In view of the foregoing, the Board must remand this case to conduct an additional search of the casualty lists for the names "Brown" and "Beenson." The Board also concludes that the veteran should be provided with another opportunity to present information regarding his purported in-service stressors. The Board further observes that the joint motion contended that the December 2006 decision provided inadequate reasons and bases as to whether the veteran had received hazardous duty pay, to include the description of NPRC's response to a request for information on this issue. However, even though information was previously requested on this matter, since a remand is otherwise required to review official service records the Board concludes that an additional request for information on this issue from official sources should be conducted. In addition, the Board observes that it noted in the December 2006 decision that the veteran had not been provided with information regarding disability rating(s) and effective date(s) as outlined by the Court's decision in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although the Board found at that time that this lack of notice was not prejudicial to the veteran, since a remand is otherwise required in this case the Board concludes that he should also be provided with the requisite notice. For the reasons stated above, this case is REMANDED for the following: 1. Please provide the veteran a corrective notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that includes an explanation as to the information or evidence needed to establish potential disability rating(s) and effective date(s) should service connection be established, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. Please obtain the names and addresses of all medical care providers who have treated the veteran for his PTSD since 2005. After securing any necessary release, obtain those records not on file and the name of any individual present or otherwise involved. 3. Request additional information from the veteran regarding his purported in- service stressor(s), to include specific dates and places where these events occurred. 4. After the veteran responds to the request for additional information regarding his in-service stressors, or otherwise has been given an adequate opportunity in which to respond, another attempt should be made to verify his account of these stressors through official channels. In pertinent part, a search should be made of casualty lists for the veteran's unit for the relevant period for the names "Brown" and "Beenson." A request should also be made through official channels for any information regarding whether he received hazardous duty pay. A response from any official source contacted regarding these requests should be received before readjudication of this claim. 5. Thereafter, review the claims folder to ensure that the foregoing requested development has been completed. If not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing any additional development deemed necessary, readjudicate the issue on appeal in light of any additional evidence added to the records assembled for appellate review. The decision should reflect consideration of whether the veteran received hazardous duty pay while on active duty, or whether the record otherwise indicates he engaged in combat while on active duty. If the benefit requested on appeal is not granted to the veteran's satisfaction, the veteran and his attorney should be furnished a Supplemental SOC (SSOC), which addresses all of the evidence obtained after the issuance of the last SSOC in August 2006, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).